Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1989 Feminism and the Limits of Equality Patricia A. Cain Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 24 Ga. L. Rev. 803 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. FEMINISM AND THE LIMITS OF EQUALITY PatriciaA. Cain* I. INTRODUCTION Feminist legal theorists, at least in this country, seem to be ob- sessed with the concept of equality. Given the pre-eminence of the equal protection clause in twentieth century constitutional litiga- tion, this obsession is not surprising. One Australian feminist, after observing that "equality" is similarly central to Anglo-Australian jurisprudence, concluded that "the preoccupation with equality has constituted an impediment to the development of feminist theory."1 "Liberty" is another central concept in American jurisprudence. The dominant political discourse, however, interprets liberty to mean negative liberty. Thus, constitutional guarantees of liberty mean only that the state shall leave individuals free from govern- mental interference. Part of the feminist attraction to equality stems from the possibility of interpreting equality to grant women more substantive rights than those that can be derived from nega- tive liberty.' Despite its possibilities, the meaning of equality as a constitu- tional norm has remained limited to the concept of formal equal- ity.3 This limitation persists despite extensive feminist attempts to * H.O. Head Centennial Professor in Real Property Law, University of Texas; A.B.. 1968, Vassar College; J.D., 1973, University of Georgia. This Essay is an expanded version of the Edith House Lecture I delivered at the University of Georgia School of Law in March 1990. I would like to thank the Georgia students and faculty who engaged me in lively discussions following the House Lecture and whose generous hospitality proved that sometimes you can go home again. I am also indebted to the following colleagues for their extremely helpful written comments on an earlier draft: Martha Chamallas, Karen Engle, Herbert Hovenkamp, Jean Love, and Judith Resnik. Margaret Thornton, Feminist Jurisprudence:Illusion or Reality?, 3 Ausm. J.L. & Soc'" 5, 11 (1986). 2 Cf. CATHARINE MACKINNONo FEMINISM UNMODIFIED 93-102 (1987) (discussing privacy and equality). 3 See Mary Becker, Politics,Differences and Economic Rights, 1989 U. CHL LEGAL F. 169. "Formal equality" requires courts to treat like cases alike. See infra notes 58-60 and accom- 803 HeinOnline -- 24 Ga. L. Rev. 803 1989-1990 804 GEORGIA LAW REVIEW [Vol. 24:803 reconceptualize the meaning of equality.4 Feminists have not been able to agree among themselves on a uniform core definition for equality. The most notable debate has been between those femi- nists who support the "equal treatment" concept (also known as formal equality)" and those who support the "special treatment" concept (also known as substantive equality).6 This debate has centered on the question of pregnancy in the workplace and has been primarily strategic-whether to stress the similarities be- tween men and women (in order to gain support for pregnant women) or whether (and when) to stress their differences (in order to gain support for pregnant women). Because both equal treat- ment and special treatment feminists agree that the workplace should support pregnant women, their debate has been viewed as a debate about means rather than ends. Debates about the meaning of equality, however, can be debates about "ends" or goals.7 As a goal, sex equality can mean a number of different things. For example, some feminists might contemplate an ideal, sex-equal world in which a person's sex is totally irrele- vant to everyone.8 Other feminists might contemplate a world in panying text (discussing the principle of formal equality). ' The feminist debate over the meaning of equality is reflected in the following articles: Lucinda Finley, Transcending Equality Theory: A Way Out of Maternity and the Work- place Debate, 86 COLUM. L. REV. 1118 (1986); Herma Kay, Equality and Difference: The Case of Pregnancy, 1 BERK. WOMEN'S L.J. 1 (1985) [hereinafter Equality and Difference]; Herma Kay, Models of Equality, 1985 U. ILL. L. REV. 39; Linda J. Krieger & Patricia N. Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U.L. REV. 513 (1983); Kathleen Lahey, Feminist Theories of (In)Equality, 3 WIS. WOMEN'S L.J. 5 (1987); Sylvia Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984); Christine Littleton, Reconstructing Sexual Equality, 75 CALIF. L. REV. 1279 (1987); Wendy Williams, Notes from a First Generation, 1989 U. CI. LEGAL F. 99 [hereinafter First Generation];Wendy Williams, Equality's Rid- dle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & Soc. CHANGE 325 (1985). 5 See, e.g., Wendy Williams, First Generation, supra note 4. ' See, e.g., Linda J. Krieger & Patricia N. Cooney, supra note 4. Some male scholars argue that equality is a goal in itself, a "fundamental human good," both instrumentally and intrinsically. E.g., KAI NIELSEN, EQUALITY AND LIBERTY 3 (1985); see also David A.J. Richards, Justice and Equality, in AND JUSTICE FOR ALL 241 (1982). But see Peter Westen, The Empty Idea of Equality, 95 HARe. L. REV. 537 (1982). For further discus- sion of the debate over equality that followed Westen's article, see Kenneth Simons, Equal- ity as a Comparative Right, 65 B.U.L. REV. 387, 388-89 (1985). 8 If you have trouble imagining such a world, see JUNE ARNOLD, THE COOK AND THE CAR- PENTER (1973), a work of fiction in which the author creates sexless pronouns so that the reader is not apprised of the sex of the characters, thereby making sexual identity irrelevant HeinOnline -- 24 Ga. L. Rev. 804 1989-1990 1990] LIMITS OF EQUALITY 805 which a person's sex is irrelevant in public (meaning the- law should take no notice), but not in private (meaning individuals may prefer persons of one sex over another for certain personal relationships). Still other feminists might contemplate a world in which sex differences may sometimes be noticed by the law, but only to assure other feminists' goals (for example, that child-bear- ing be cost-free). I believe our ability to conceptualize the ideal world is influ- enced by the world in which we actually live. Thus, I am skeptical of most utopian visions of sex-equal societies. I am particularly skeptical if those visions are too fixed. If equality is to be viewed as a goal, it must constantly be subject to revision. Nonetheless, we need some vision of a better world, some idea of the ideal for women. Equality may be part of the ideal. It may be an interim step, or it may be a means to attaining other ideals. How we move from this non-ideal world to the ideal one raises a question of appropriate means.9 Which legal arguments we, as fem- inists, choose to pursue ought to reflect our vision of the ideal. This is true because the rhetoric we adopt helps to shape future reality. Thus, to argue that pregnant women need special treat- ment is to emphasize sex differences and to contribute thereby to a reality in which sex is relevant, a reality which those who embrace sex neutrality seek to change. I do not mean to suggest that femi- nists who believe in sex neutrality as the ideal ought never to adopt a sex-specific strategy. I mean only to suggest that such fem- inists ought to consider the impact a sex-specific argument will have on their long term goal. This Essay is about the limits of equality for feminist legal the- ory. Equality, like all concepts, is a social construct. Whether we view equality as an ultimate goal of feminism, or merely as a useful rhetorical device to help obtain other substantive goals, our cur- rent use of the language of equality reflects the meanings that have been constructed by a patriarchal society. In short, the rhetoric of equality compares women to men. Women are either the same as men or different, and in either case, men have set the standard.' 0 in the stories of their lives. g Other scholars call this the problem of transition. See. e.g., Margaret Jane Radin, Afar- ket-Inalienability, 100 HARv. L. REV. 1849, 1875 (1987). 10See generally CATHARINE MAcKINNON. TOWARD A FEhsNsT THiEORY OF THE STATE 215- HeinOnline -- 24 Ga. L. Rev. 805 1989-1990 806 GEORGIA LAW REVIEW [Vol. 24:803 They have also defined what it means to be a woman." An important goal of feminist legal theory is to challenge and change the male standard, to recreate reality from a woman-cen- tered perspective. Debates about equality have unmasked the fact of the male standard, but seem to me unlikely to change the stan- dard. It is time to move beyond equality, which inevitably com- pares women to men, and to focus on women themselves. To do this is to embrace feminist goals that others have claimed are cen- tral to the ultimate feminist project: self-definition"2 and self- determination.'3 In this Essay, I will consider four schools of feminist thought: liberal, radical, cultural and postmodern. My initial purpose is to highlight and explain the disagreements over the meanings of equality that have occurred among feminist legal scholars influ- enced by these four schools of thought.